1. The Application before Court is the Chamber Summons dated 30th June 2022 presented under Section 45, 47, 67 and 83 of the Law of Succession Act, Rules 25, 36, 38, 59, 63 and 73 of the Probate and Administration Rules and all other provisions of the law, in which the Applicant seeks the following orders
a) Spent
b) The Objector be restrained either by herself, servants, agents or any other person duly authorised by her from intermeddling and conversion of the Estate of deceased pending the hearing and determination of this Application.
c) The Honourable Court do issue an order preserving the estate of James Karobia Gacheru by directing that all the current income and revenues of the Estate currently being collected and under the control of the objector herein be deposited into a joint interest earning escrow account in the joint names of the Petitioners and the Objector or their respective advocates.
d) This Honourable Court be pleased to order and direct the objector herein to accurately account for all money she has so far collected from the deceased’s estate.
e) This Honourable Court be pleased to appoint Njambi Karobia, the 2nd Petitioner herein as the interim administrator of the Estate of the Late James Karobia Gacheru pending the hearing and determination of this application.
f) Any other order that may be just and in the interest of preservation of the estate of the properties of the deceased
g) Costs of the Application be provided for
2. The Application was opposed and the Court directed that the same be canvassed by written submissions. Both parties complied and have filed their written submissions.
3. When the Court retired to write the ruling the record showed that letters of Administration have not issued with respect to the Estate of the deceased and the pertinent issue even before I consider the Application on its merits is whether the Applicants have requisite locus standi to present this Application.
4. In Edema & 2 others v Edema & 5 others (Miscellaneous Succession Cause E001 of 2022) [2022] KEHC 9960 (KLR) (6 July 2022) (Ruling) the the Applicant sought orders against the Respondents for intermeddling. As in the instant case the Applicants in that case presented the Application in the absence of Letters of Administration.
5. On locus standi, the Court cited with approval the decision in Alfred Njau v City Council of Nairobi (1983) KLR 625 where the Court of Appeal stated-
locus standi literally means a place of standing and refers to the right to appear or herd[sic] in court proceedings and to say that a person has no locus standi means that he/she has no right to appear or be heard in such and such proceedings.
6. The Court also cited with approval the decision of Dulu J. in the matter of the Estate of Geoffrey Meitamei Lonina (Deceased) [2012] eKLR where the Court stated
Indeed, under Section 45(1) and (2) of the Law of Succession Act (Cap 160) this Court has powers to protect the assets of a deceased person. However, in my view only an administrator or an interested party in an existing administration cause, can apply for protection of the deceased’s assets. In the present matter, no application for letters of administration has been filed under Sections 51, 53 or 54 of the Law of Succession Act. Therefore, in my view, the provisions of Section 45 of the Act cannot be brought into play by the applicant. She has no legal standing in law to bring the present application. On that account, I find that the application is misconceived.
7. More recently in the case of in re Estate of James George Maruti (Deceased) [2021] eKLR Riechi J summarized it as follows-
The applicant may be having a cause of action or interest as a beneficiary to protect and preserve the estate or intermeddling and waste. She however has lacked locus standi to secure the relief sought. Without first obtaining either limited or full grant of letters of administration.
8. In Conclusion I find that it is well established by law and judicial precedent that for a party to move to preserve the estate they need to be clothed with the requisite mandate, in this instance letters of administration.
9. The orders sought are also not issuable against the Respondents as they have not taken out letters of administration with respect to the estate. Having found that the Applicant has no locus standi, I am unable to proceed and consider the merits of the Application.
10. Consequently, the Application dated 30th June, 2022 is struck out and the following orders made
a) The Objection to proceeed for hearing by way of viva voce evidence. Parties to file and exchange witness statements and list and bundle of documents within 45 days.
b) Mention before the Deputy Registrar on 14th April 2024 to confirm compliance and take further directions.
c) Each party to bear their own costs
It is so ordered
SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 26th DAY OF JANUARY , 2024.